Reconstruction of Wages is an issue in many New Jersey workers’ compensation matters. In a case handled by Capehart Scatchard and successfully argued by Keith Nagy, Esq., the Appellate Division stressed that petitioner has to prove permanent impairment of full-time working capacity arising from a work injury before wages must be reconstructed. The case is Lawson v. New Jersey Sports and Exposition Authority, A-4058-17T1 (June 26, 2019).

Petitioner, Ms. Lawson, had two jobs in 2009: one for the
NJSEA as a stadium usher earning about $14 per hour and the other for Wal-Mart
in a full-time position. She broke her
femur at work on the part-time job with the NJSEA I 2009 and had metal rods
inserted into her leg during surgery. She
worked very few hours for NJSEA, so her wage was only $103.36 per week giving
rise to a rate of $72.35 per week for permanency purposes. Because petitioner had a significant injury
consisting of a femur fracture and other leg injuries, the parties ultimately agreed
that the disability was thirty three and one third percent. Where the parties disagreed was on whether to
do wage reconstruction. That issue was
the one that was tried fully.

Without wage reconstruction, the one third award amounted to
$14,469. With wage reconstruction, the
one third award would have amounted to $72,300 because the $14 per hour wage
would be reconstructed on a 40-hour per week basis to $560 with a rate of $392.
So
reconstruction in this case really mattered:
$14,469 versus $72,200. The
difference was $57,531.

Petitioner testified at trial that after her accident on
August 14, 2009, she took medical leave from Wal-Mart until April 2010. When she returned to Wal-Mart, she did so
with medical restrictions limiting her to part-time work. Petitioner refused the company’s offer of
part-time work and was let go. She later
reapplied to Wal-Mart for a full-time position but the company did not rehire
her. After she recovered from her
surgery, she was able to return to her part-time job as a stadium usher for the
NJSEA.

Petitioner collected unemployment from July 2010 to December
2012, certifying that she was ready, willing and able to work. At the time petitioner testified at trial,
she said that she could not do stocking of shelves and so was unable to get a
job in other large stores. She also
testified that she felt she could work full time in a store but only if she did
not have to climb ladders. At the time of her testimony, she was working
part-time at a supermarket. She admitted
to doing a lot of physical work at home, mowing the lawn, cutting wood with a
small electric chainsaw, walking a mile and swimming.

Two experts testified in the case on the issue of
reconstruction of wages. Dr. Tiger for
petitioner said that petitioner could not do full-time work as a consequence of
her injury at NJSEA. However, he did not
know that she was climbing up and down stairs as a stadium usher, and he did
not know that she was swimming, walking a mile and doing some strenuous home
activities.

Dr. Mercurio for respondent testified that petitioner had minimal
residual disability from her injuries.
He felt that she could work full duty without restrictions. He noted that petitioner had a second surgery
in 2014 to remove hardware from her leg and observed that petitioner told
physicians that she was “better than she was before.” When Dr. Tiger examined, the second surgery
had not yet taken place, so he really could not comment on this issue.

The Judge of Compensation found Dr. Mercurio to be the more credible medical witness. The Judge noted that Dr. Tiger was not aware of several key facts in the case that Dr. Mercurio had been aware of. The Judge stated that “petitioner was a very sturdy woman with a high level of physical strength and endurance and energy.” This conclusion was based in part on the many home activities petitioner engaged in. The Judge cited to the leading case on reconstruction of wages, Katsoris v. South Jersey Publishing Company, commenting that petitioner failed to prove that “she lacked potential for full-time employment under the Katsoris decision.”

Petitioner appealed to the Appellate Division and argued that she had not been able to return to full-time employment, which was proof in and of itself that her wages should be reconstructed. The Appellate Division disagreed. The Court said, “petitioner did not prove that her injuries from the 2009 accident diminished her capacity to perform full-time work.” The Appellate Division credited the Judge of Compensation in making appropriate findings in the case.

This is a helpful decision to practitioners because it shows that it is not enough to prove wage reconstruction simply by stating that one has not returned to full-time work. Physical capacity of the worker both in and outside work must be considered. The Judge in this case found that the petitioner could in fact do full-time work based on the physical activities that she engaged in at home, and respondent’s expert made the point that she had no restrictions against doing full duty work.

About the Author

About the Author:

John H. Geaney, an executive committee member and shareholder with Capehart Scatchard, began an email newsletter entitled Currents in Workers’ Compensation, ADA and FMLA in 2001 in order to keep clients and readers informed on leading developments in these three areas of law. Since that time he has written over 500 newsletter updates.

Mr. Geaney is the author of Geaney’s New Jersey Workers’ Compensation Manual for Practitioners, Adjusters & Employers. The manual is distributed by the New Jersey Institute for Continuing Legal Education (NJICLE). He also authored an ADA and FMLA manual as distributed by NJICLE. If you are interested in purchasing the manual, please contact NJICLE at 732-214-8500 or visit their website at www.njicle.com.

Mr. Geaney represents employers in the defense of workers’ compensation, ADA and FMLA matters. He is a Fellow of the College of Workers’ Compensation Lawyers of the American Bar Association and is certified by the Supreme Court of New Jersey as a workers’ compensation law attorney. He is one of two firm representatives to the National Workers’ Compensation Defense Network. He has served on the Executive Committee of Capehart Scatchard for over ten (10) years.

A graduate of Holy Cross College summa cum laude, Mr. Geaney obtained his law degree from Boston College Law School. He has been named a “Super Lawyer” by his peers and Law and Politics. He serves as Vice President of the Friends of MEND, the fundraising arm of a local charitable organization devoted to promoting affordable housing.

Capehart Scatchard is a full service law firm with offices in Mt. Laurel and Trenton, New Jersey. The firm represents employers and businesses in a wide variety of areas, including workers’ compensation, civil litigation, labor, environmental, business, estates and governmental affairs.

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